Transferred from the Eastern District of Louisiana : (Case No. 11-1198)
The opinion of the court was delivered by: Eduardo C. Robreno J.
Plaintiff, Sally Gros Vedros, first filed suit in the Civil District Court for the Parish of Orleans, Louisiana, on October 28, 2010, alleging that Defendant CBS Corporation ("CBS"), Defendant Foster Wheeler, LLC ("Foster Wheeler"), and Defendant General Electric Company ("GE") (collectively, "Defendants") are liable for asbestos-related injuries suffered by her and her father ("Plaintiffs"). Plaintiffs claim that they were exposed to asbestos in connection with boilers and turbines supplied by Defendants to vessels built by Northrop Grumman Shipbuilding, Inc. (formerly known as Avondale Industries, Inc., formerly known as Avondale Shipyards, Inc.) [hereinafter "Avondale"].
On May 20, 2011, Defendants removed the case to federal court in the
Eastern District of Louisiana based on a May 4, 2011, letter from
Plaintiffs' counsel stating that the elder Vedros had "worked on all
vessels present at Avondale . . . during his employment there" and
that both Plaintiffs were "exposed to asbestos from all equipment
present at Avondale . . . during their employments there."
Letter from Pl.'s Counsel, Notice of Removal Ex. F,
Vedros v. Northrop Grummann Shipbuilding, Inc., No. 11-1198, 2011 WL
2432955, at *1 (E.D. La. June 15, 2011) (emphasis added). On May 23, 2011, Plaintiffs filed
a motion in the Eastern District of Louisiana to remand the case back
to state court.*fn1 Mot. to Remand, Mot. to Set Mot.
to Remand for Hr'g Ex. A, ECF No. 11 [hereinafter Mot. to Remand]. The
motion to remand was stayed on June 15, 2011, pending the anticipated
transfer of the case by the U.S. Judicial Panel on Multidistrict
Litigation ("JPML"). The case was transferred to the Eastern District of Pennsylvania on August 12,
On September 16, 2011, Plaintiffs filed a motion to set the stayed
motion to remand for hearing by this Court. Mot. to Set Mot. to Remand
for Hr'g, ECF No. 11 [hereinafter Second Mot. to Remand]. Plaintiffs
attached their first motion to remand and supporting memorandum as
exhibits to this motion. On September 21, 2011, Defendants each filed
a memorandum opposing Plaintiff's second motion to remand.*fn2
Foster Wheeler Opp'n to Mot. to Remand, ECF No. 14; CBS Opp'n
to Mot. to Remand, ECF No. 15; GE Opp'n to Mot. to Remand, ECF No. 16.
On November 21, 2011, out of an abundance of caution, Plaintiffs re-filed their second
motion to remand and filed a motion to strike the affidavits
Defendants relied on for § 1442 removal, which included the entirety
of the first motion to remand.*fn3 Mot. to Remand and
Mot. to Strike Affs., ECF Nos. 22-25.
There are two issues before this Court. The first issue is whether Defendants timely removed this case from Louisiana state court to federal court within thirty days of it becoming removable pursuant to 28 U.S.C. § 1446(b). 28 U.S.C. § 1446(b) (2006). The second issue is, if removal was timely, whether Defendants properly satisfied the requirements of the federal officer removal statute pursuant to 28 U.S.C. § 1442(a)(1). 28 U.S.C. § 1442(a)(1). For the following reasons, the Court finds that the removal was timely, and that Defendants satisfied the requirements of the federal officer removal statute. Accordingly, the motion to remand will be denied.
Plaintiffs contend that Defendants did not timely remove the case to federal court. They also contend that Defendants do not meet of any of the requirements that allow them to remove the case pursuant to § 1442(a)(1).*fn4 Defendants counter that the case only became removable in May 2011, not in November 2010, as Plaintiffs assert. Defendants also argue that they have met all of the requirements for removal under § 1442(a)(1). The matter is now ripe for disposition.
Plaintiffs move to remand this case to state court, arguing that Defendants did not timely file for removal after they were put on notice of a federal defense upon service of Plaintiffs' petition for damages in November 2010, in accordance with 28 U.S.C. §§ 1442 (a)(1) and 1446(b)(1). Mem. Supp. First Mot. to Remand 2-4, Pl.'s Mot. to Set Mot. to Remand for Hr'g Ex. B [hereinafter Pl.'s Mem.]. Plaintiffs contend that the petition for damages provided sufficient basis for removal, and, therefore, the thirty-day removal period started at the time Defendants were served with the petition.*fn5 Id.
Defendants counter that they were able to ascertain that Plaintiffs' alleged injuries might have been attributable to their work with Defendants' boilers and turbines aboard Navy ships only upon receipt of a letter from Plaintiffs' counsel on May 4, 2011. CBS Opp'n to Mot. to Remand 10; GE Opp'n to Mot. to Remand 10; Foster Wheeler Opp'n to Mot. to Remand 8. Defendants contend that "the removal period is not triggered as to asbestos-related claims against a Navy equipment supplier until . . . Defendant[s are] provided with unequivocal notice of alleged exposure aboard a Navy ship to a type of product as to which [their] removal rights can be asserted." Id. Defendants assert they received such notice from the May 4, 2011, letter. Id.
The timeliness of removal is an issue of federal law.
28 U.S.C. § 1442(a); In re Asbestos Prods. Liab. Litig. (No. VI), 770 F. Supp. 2d 736, 739 (E.D. Pa. 2011). In the context of a multidistrict litigation case, issues of federal law are governed by the law of the circuit in which the MDL court sits. Various Pls. v. Various Defs. (Oil Field Cases), 673 F. Supp. 2d 358, 362 (E.D. Pa. 2009) ("[I]n cases where jurisdiction is based on federal question, this Court, as the transferee court, will apply federal law as interpreted by the Third Circuit."). Therefore, the Court applies Third Circuit precedent to determine whether or not Defendants' notice of removal was timely.
The federal officer removal statute provides that a notice of removal must be filed within thirty (30) days of a defendant's receipt of the initial pleading or, "[i]f the case stated by the initial pleading is not removable," within thirty days after defendant's receipt of "an amended pleading, motion, order or other paper from which it may be ascertained that the case is one which is or has become removable[.]" 28 U.S.C. §§ 1442(a)(1), 1446(b)(3). The thirty-day window for removal is triggered only when "the four corners of the pleading . . . inform the reader, to a substantial degree of specificity, [that] all the elements of federal jurisdiction are present." Foster v. Mut. Fire, Marine & Inland Ins. Co., 986 F.2d 48, 53 (3d Cir. 1993), rev'd on other grounds, Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999); In re Asbestos Prods. Liab. Litig. (No. VI), 770 F. Supp. 2d at 740. In Foster, the ...